2022 IL App (5th) 210190-U
NOTICE
NOTICE
Decision filed 04/06/22. The
This order was filed under
text of this decision may be NO. 5-21-0190
Supreme Court Rule 23 and is
changed or corrected prior to
the filing of a Petition for not precedent except in the
Rehearing or the disposition of
IN THE limited circumstances allowed
the same. under Rule 23(e)(1).
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
______________________________________________________________________________
REZEN J. SHAMHART, ) Appeal from the
) Circuit Court of
Plaintiff-Appellant, ) Effingham County.
)
v. ) No. 18-L-4
)
KATELYN C. HATTEN, ) Honorable
) Jeffrey L. DeLong,
Defendant-Appellee. ) Judge, presiding.
______________________________________________________________________________
JUSTICE MOORE delivered the judgment of the court.
Justices Welch and Cates concurred in the judgment.
ORDER
¶1 Held: The circuit court’s dismissal of the plaintiff’s complaint with prejudice
pursuant to Illinois Supreme Court Rule 103(b) (July 1, 2007) was not an abuse of
discretion where the plaintiff failed to serve the defendant for approximately
33 months following the filing of his complaint on the last day of the applicable
statute of limitations and where the plaintiff did not offer any explanation as to
how he exercised reasonable diligence as required under the rule.
¶2 Plaintiff, Rezen J. Shamhart, filed a complaint in the circuit court of Effingham County for
personal injury against the defendant, Katelyn C. Hatten. After the defendant was served with
summons, approximately 33 months after the initial filing of the complaint, she filed a motion to
dismiss the complaint pursuant to Illinois Supreme Court Rule 103(b) (eff. July 1, 2007), asserting
that the plaintiff failed to exercise reasonable diligence in effectuating the service. Following a
hearing on the motion, the circuit court granted the defendant’s motion and dismissed the
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complaint with prejudice. For the reasons that follow, we affirm the circuit court’s dismissal of the
plaintiff’s case.
¶3 I. BACKGROUND
¶4 On January 22, 2018, the last day of the applicable statute of limitations, the plaintiff,
through his attorney, Michael Meyer, filed his complaint against the defendant seeking damages
for personal injury. In the complaint, the plaintiff alleged that his injuries stemmed from a motor
vehicle accident involving the defendant in Effingham County, Illinois, on January 22, 2016. On
January 23, 2018, a summons was issued to the defendant.
¶5 On January 16, 2020, the circuit court issued a notice of dormancy for the case.
Subsequently, two case management conferences were held on March 5, 2020, and July 14, 2020.
The docket entry for the March 5 conference stated, “ATTY MEYER; THERE HAS BEEN NO
SERVICE; P ADVISES WORKING ON SETTLEMENT.”
¶6 The original summons was returned unserved on August 18, 2020. The certificate of
service noted three attempts at serving the defendant between January 27, 2018, and February 10,
2018. The comments in the certificate of service stated, “per the Neoga PD lives at same address
as Bonnie Swafford.”
¶7 An alias summons was issued on August 18, 2020, eight months after the circuit court’s
issuance of a notice of dormancy. The alias summons was returned unserved on October 5, 2020.
A second alias summons was issued on October 9, 2020. The second alias summons was returned
by a private process server showing abode service on October 13, 2020, approximately 33 months
from the date suit was filed.
¶8 On December 30, 2020, the defendant filed a motion to dismiss and supporting
memorandum of law pursuant to Illinois Supreme Court Rule 103(b) (eff. July 1, 2007). The
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defendant in her motion to dismiss argued that the plaintiff had failed to exercise due diligence in
effectuating service. The defendant attached multiple exhibits to her motion to dismiss, including
correspondence between Attorney Meyer and the defendant’s insurer, Safeco Insurance Company
(Safeco). The relevant information contained in those documents is as follows.
¶9 On July 7, 2016, approximately six months following the alleged motor vehicle accident,
Attorney Meyer sent a letter to Safeco notifying them of his representation of the plaintiff. Receipt
of this correspondence was acknowledged by Safeco via correspondence dated July 13, 2016.
Following the correspondence between Safeco and Attorney Meyer, a series of phone
conversations took place in which Safeco requested Attorney Meyer provide it with a demand
package, including any medical bills, records, or loss of income information to support the
plaintiff’s claims. No response was ever submitted by Attorney Meyer which contained any of the
requested materials.
¶ 10 On January 23, 2018, the same day the original summons was issued to the defendant,
Attorney Meyer sent correspondence to Safeco with an enclosed copy of the filed complaint. On
February 26, 2018, a Safeco representative again requested a demand package from Attorney
Meyer. He responded that same day, stating:
“Had to order an updated medical record. Should have it this week. In the
meantime, your insured was not found for service. Alias summons to issue.”
¶ 11 Following this correspondence, Safeco intermittently requested a demand package, and in
response, Attorney Meyer offered various explanations as to why he had not yet provided the
information. Then from August 22, 2018, until July 13, 2020, a period of 23 months, no contact
between Safeco and Attorney Meyer occurred.
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¶ 12 Turning back to the procedural facts of this matter, following the defendant’s filing of her
motion to dismiss in December of 2020, the plaintiff filed his response on March 25, 2021. In his
response, the plaintiff argued that the motion dismiss should be denied because (1) the defendant’s
insurer, Safeco, had knowledge of the lawsuit, and (2) she was not prejudiced by the delay in
service because she had the opportunity to investigate the claims once Safeco learned of his claims
against her. The defendant filed her reply on April 7, 2021.
¶ 13 On April 29, 2021, the circuit court held argument from both parties on the defendant’s
motion to dismiss. On May 27, 2021, the circuit court entered its order dismissing the plaintiff’s
case with prejudice pursuant to Illinois Supreme Court Rule 103(b) (eff. July 1, 2007). The plaintiff
then filed this timely notice of appeal on June 25, 2021.
¶ 14 II. ANALYSIS
¶ 15 On appeal, the plaintiff contends that the circuit court abused its discretion in dismissing
his complaint with prejudice pursuant to Illinois Supreme Court Rule 103(b) (eff. July 1, 2007).
We disagree. For the reasons that follow, we find that the circuit court did not abuse its discretion
in dismissing the plaintiff’s lawsuit.
“Rule 103(b) provides that, if the plaintiff fails to exercise reasonable diligence
to obtain service on a defendant after the statute of limitations has expired, the
circuit court may dismiss the matter and that such dismissal shall be with prejudice.
Ill. S. Ct. R. 103(b) (eff. July 1, 2007). In considering whether the plaintiff exercised
reasonable diligence, the circuit court is to consider the totality of the
circumstances. Id. This court reviews the circuit court’s grant of a dismissal
pursuant to Rule 103(b) for an abuse of discretion. Segal v. Sacco, 136 Ill. 2d 282,
286 (1990). ‘A trial court abuses its discretion when its decision is “arbitrary,
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fanciful, or unreasonable, or where no reasonable person would adopt the court’s
view.” ’ (Emphasis added.) Emrikson v. Morfin, 2012 IL App (1st) 111687, ¶ 14
(quoting Evitts v. DaimlerChrysler Motors Corp., 359 Ill. App. 3d 504, 513 (2005)).
Rule 103(b) does not set forth any specific time limitation within which a
defendant must be served, but the rule has the essential purpose of promoting the
expeditious handling of lawsuits by giving the circuit courts wide discretion to
dismiss when service is not effectuated with reasonable diligence. Segal, 136 Ill.
2d at 285-86. The purpose of Rule 103(b) is to protect defendants from unnecessary
delay in the service of process and to prevent circumvention of the statute of
limitations. Id. at 286. The plaintiff bears the burden of showing reasonable
diligence in the service of process and must provide a reasonable explanation for
any apparent lack of diligence. McRoberts v. Bridgestone Americas Holding, Inc.,
365 Ill. App. 3d 1039, 1043 (2006).
The court is to apply an objective standard when determining whether a plaintiff
exercised reasonable diligence in effecting service of process, with each case
turning on its own specific facts. Id. at 1042. The determination of whether a
plaintiff failed to exercise reasonable diligence is a fact-intensive inquiry suited to
balancing, not bright lines. Id. When deciding whether to grant dismissal pursuant
to Rule 103(b), the circuit court should consider the following factors: (1) the length
of time used to obtain service of process, (2) the activities of the plaintiff, (3) the
plaintiff’s knowledge of the defendant’s location, (4) the ease with which the
defendant’s whereabouts could have been ascertained, (5) the defendant’s
knowledge of the pendency of the lawsuit, (6) special circumstances which would
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affect the plaintiff’s efforts, and (7) actual service on the defendant. Segal, 136 Ill.
2d at 287. These factors must be contemplated in light of the purpose of Rule
103(b). Id. However, it is well settled that dismissal under Rule 103(b) is within the
sound discretion of the circuit court. Id. at 286. ‘In determining whether there has
been an abuse of discretion, we may not substitute our judgment for that of the trial
court, or even determine whether the trial court exercised its discretion wisely.’
Simmons v. Garces, 198 Ill. 2d 541, 568 (2002).” Kramer v. Ruiz, 2021 IL App
(5th) 200026, ¶¶ 20-22.
¶ 16 Therefore, the question before this court is whether the circuit court’s determination that
the plaintiff failed to use reasonable diligence in serving the defendant following the filing of the
lawsuit was “arbitrary, fanciful, unreasonable, or whether no reasonable person would adopt the
circuit court’s view.” We find that it was not.
¶ 17 When a motion to dismiss is filed pursuant to Rule 103(b), the defendant bears the initial
burden of making a prima facie showing of a lack of due diligence in effectuating service of
process. Emrikson, 2012 IL App (1st) 111687, ¶ 17; Ill. S. Ct. R. 103(b) (eff. July 1, 2007). “Once
the defendant establishes that the time between the filing of the complaint and the date of service
suggests a lack of diligence, the burden then shifts to the plaintiff to provide a satisfactory
explanation for the delay in service.” Emrikson, 2012 IL App (1st) 111687, ¶ 17. “In the absence
of a satisfactory explanation, the trial court is justified in granting a Rule 103(b) dismissal.” Id.
¶ 18 Here, the amount of time that elapsed between the filing of the plaintiff’s complaint and
service on the defendant was 33 months. While Rule 103(b) does not set forth any specific time
limitation within which a defendant must be served, Illinois courts have regularly held that such a
delay is sufficient to warrant dismissal, or at a minimum demonstrates a lack of diligence on the
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part of the plaintiff. See, e.g., Womick v. Jackson County Nursing Home, 137 Ill. 2d 371, 380-81
(1990) (Illinois Supreme Court found dismissal with prejudice not an abuse of discretion where
plaintiff never attempted to serve the defendant at a known location for a period of nine months
following the filing of the lawsuit); Emrikson, 2012 IL App (1st) 111687, ¶ 18 (the appellate court
found that whether the delay of service was calculated as 13 months or 7 months, “the length of
time raises an inference of a lack of reasonable diligence”); Luebbing v. Copley Memorial
Hospital, 60 Ill. App. 3d 780, 781 (1978) (the plaintiff did not place summons until 10 months
after the lawsuit was filed); Penrod v. Sears, Roebuck & Co., 150 Ill. App. 3d 125, 129 (1986)
(appellate court found the plaintiff failed to exercise due diligence where the plaintiff only made
minimal efforts to obtain service over a period of seven months). Therefore, the delay of 33 months
is more than sufficient for a circuit court to find a lack of reasonable diligence on the part of the
plaintiff.
¶ 19 Because the defendant has established that the time between the filing of the complaint and
the date of service suggests a lack of the plaintiff’s diligence, the burden then shifts to the plaintiff
to provide a satisfactory explanation for the delay in service. Emrikson, 2012 IL App (1st) 111687,
¶ 17. However, the plaintiff offers no explanation whatsoever as to the reason for the delay. At no
point, at the circuit court level or on appeal, does the plaintiff explain why it took 2.75 years
following the filing of the complaint, or 4.5 years from the date of the accident, for him to serve
the defendant. Moreover, the plaintiff fails to explain why he took no actions, for a period of 30
months, toward serving the defendant following the final attempt at service of the original
summons on February 10, 2018, despite the discovery that the defendant had changed addresses.
Attorney Meyer was aware of the need to issue an alias summons during this time as acknowledged
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by his correspondence to Safeco on February 26, 2018 (“In the meantime, your insured was not
found for service. Alias summons to issue.”).
¶ 20 Additionally, it is evident that only negligible work occurred towards progressing the
plaintiff’s case after the filing of the complaint because on January 16, 2020, two years after the
complaint’s filing, the circuit court issued a notice of dormancy threatening to dismiss the action
for want of prosecution. Despite this notice and multiple status conferences where Attorney Meyer
acknowledged service had not occurred, the plaintiff failed to return the original summons until
August 18, 2020, eight months after the circuit court’s dormancy notice. This failure of the plaintiff
to take action towards service and towards progressing the case is sufficient to support the circuit
court’s finding that the plaintiff failed to exercise reasonable diligence in serving the defendant.
¶ 21 While there is evidence that the defendant changed addresses at least once during the 2.75
years following the filing of the complaint, at no point does the plaintiff ever argue that this change
of address impeded his ability to properly serve the defendant. Because the plaintiff presents no
developed argument, or citation to authority, on this point, he accordingly has forfeited
consideration of it. See Ill. S. Ct. R. 341(h)(7) (eff. Oct. 1, 2020) (argument must contain the
contentions of the appellant, the reasons therefor, and the citation of authorities; points not argued
are forfeited). Further, even if the plaintiff had argued this point, we would find it unpersuasive
given the comment on the returned original summons which appeared to indicate a possible new
correct address for the defendant and the relative ease with which the defendant was properly
served once alias summonses were finally issued.
¶ 22 We do reiterate that when considering whether the plaintiff exercised reasonable diligence,
the court is to consider the totality of the circumstances, including but not limited to the factors as
set out above. Ill. S. Ct. R. 103(b) (eff. July 1, 2007); Segal, 136 Ill. 2d at 287. When reviewing
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the remaining facts of this case in light of those factors, we find that the only possible factor that
could weigh in favor of the plaintiff is that the defendant, through her insurer, had notice of the
lawsuit. However, as stated by our supreme court, “actual notice or knowledge of the lawsuit along
with a lack of prejudice to the defendant will not necessarily preclude a dismissal under Rule
103(b).” Womick, 137 Ill. 2d at 377. Thus, the plaintiff’s sole argument, that the defendant had
notice through her insurer and was not prejudiced, when viewed in light of the totality of the
circumstances of this case, is not sufficient to excuse the lack of reasonable diligence. Ultimately,
the “purpose of Rule 103(b) is to protect defendants from unnecessary delay in the service of
process and to prevent circumvention of the statute of limitations.” Kramer, 2021 IL App (5th)
200026, ¶ 21. Here, there was clearly an unnecessary delay in the service of process which resulted
in the defendant being served 4.5 years after the accident occurred, or 2.5 years after the expiration
of the statute of limitations.
¶ 23 Therefore, when considering the circumstances of this case and the factors the circuit court
weighed, it is evident that nearly all the factors weigh in support of the defendant’s position and
the circuit court’s determination to dismiss.
¶ 24 III. CONCLUSION
¶ 25 For the foregoing reasons, we find that the circuit court did not abuse its discretion and
affirm the dismissal of the lawsuit with prejudice.
¶ 26 Affirmed.
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Shamhart v. Hatten
Court: Appellate Court of Illinois
Date filed: 2022-04-06
Citations: 2022 IL App (5th) 210190-U
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